Atlanta Injury Lawyer Blog

Georgia State Bar Executive Committee Meets in Thomas County, Georgia

November 19, 2009 | Robin Frazer Clark

As a member of the Executive Committee of the State Bar of Georgia, I am proud that our Executive Committee makes a concerted effort to get outside of Atlanta and meet our fellow Georgia Bar members in the four corners of the state. Last week’s meeting in Thomasville, Thomas County, Georgia is a prime example of this. We enjoyed lunch first with many members of the local Thomas County Bar , which is part of the Southern Judicial Circuit. We met at Pebble Hill Plantation in Thomasville, which is a lovely location. The President of the Thomas County Bar Association, Christopher Rodd, was our host for the evening and for the tour of the new Thomas County Courthouse, which is not yet open for business but will be a spectacular venue. It is always a treat for me to meet members of the State Bar from across the state, who, but for my involvement in the State Bar of Georgia, I would likely never have the opportunity to meet. The theme that keeps coming through in these meetings in varied locales is this: the lawyers who comprise the State Bar of Georgia are honorable, dedicated leaders of their communities, who care about justice being served, who care about the less fortunate and who care about the criminal and civil judicial systems in Georgia and the stewardship of those two sacred systems. It is my honor to meet and come to know these lawyers and to discuss the issues they face in their communities that are worlds apart from Atlanta.

Below is a letter from Bryan Cavan, President of the State Bar of Georgia, another honorable lawyer, regarding our wonderful meeting in Thomasville.

Letter to the Editor – November 19, 2009

New 2010 Insurance Institute for Highway Safety Top Safety Picks Are Here

November 18, 2009 | Robin Frazer Clark

The Insurance Institute for Highway Safety’s Top Safety Picks for 2010 came out today and for the first time ever, roof strength was tested and included in the ratings. This means the Institute is seriously acknowledging the likelihood of rollover accidents and the survivability of them depending on what type of car you are in. Automobile manufacturers have traditionally tried to ignore roof crush standards, but they really can’t now. Especially given the high center of gravity of an SUV, that more and more Americans (including Georgians) are driving SUV’s now and, consequently, more rollovers are occurring. The starting premise of the crashworthiness of your vehicle is that your own vehicle should not kill you. This means that if you are in a wreck and the wreck is survivable, your car should not cause your death. In a rollover accident, if the roof is not strong, it will flatten like a pancake, leaving very little room for the occupants of the cab. Sometimes, the roof will crush and hit an occupant’s head and cause severe and even catastrophic neck injuries, e.g., paralysis. I am glad to see the Institute including roof crush standards in its report. Suburu, Ford, Volvo and Volkswagon all fared well in the safety report. Certainly something to consider before buying your next car. Speaking of which, you may also find at this link a brochure about buying safer cars. Consult this when you are next in the market for a new car.

Road Safer Sunday is November 29: Let’s Make Georgia Roads Safer

November 17, 2009 | Robin Frazer Clark

5,000 Deaths a Year Can Be Stopped

By Tom Hodgson

Congress should be commended for its work on the Airline Safety and Pilot Training Improvement Act of 2009 in the U.S. House, and the Federal Aviation Administration Air Transportation Modernization and Safety Improvement Act in the Senate.

Georgia Drivers: Thinking of Renting a U-Haul?

November 6, 2009 | Robin Frazer Clark

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Georgians who may be planning to rent a U-Haul truck should be aware of potential problems in the U-Haul truck fleet with maintenance of their trucks that may present a safety hazard for the driver of the truck or anyone around the truck. This safety issue came to light in a trial in Texas in 2008 in which a 74-year-old man was seriously injured after a parked U-Haul truck he rented rolled over him.

In 2006, Talmidge Waldrip, a Texas resident, parked a rented U-Haul truck in front of a warehouse, set the parking brake and turned off the ignition.When he stepped out of the cab, he fell. The truck rolled, running over Waldrip, crushing his pelvis and lumbar spine, rupturing his bladder and causing a number of other serious injuries. As a result, he has had a numerous surgeries and is now partially paralyzed.

Waldrip sued the truck company, alleging negligence and gross negligence. The key to the case was evidence that the company failed to maintain the brake and transmission systems of its truck fleet properly, including the 18-year-old, 234,000-mile driven truck that caused Waldrip’s injuries. The six jurors returned an $84.25 million verdict in favor of the plaintiff, Talmadge Waldrip, including a $63 million in punitive damages against U-Haul International for failing to maintain its rental trucks in safe working order. U-Haul has appealed the verdict.

Calling All Georgians: Be An Organ Donor!

October 16, 2009 | Robin Frazer Clark

Organ donation is so important. Many Georgians are waiting right now for a life-saving organ. I encourage folks to sign donor permission forms and tell their relatives that if they are killed or die unexpectedly, they want any usable organs donated. You must be clear about your wishes regarding all possible organs, including skin and tendons or ligaments, suitable for donation. I love the bumper sticker that says: “Be An Organ Donor: Heaven Knows We Need Them Down Here.” So true! There is an alarming shortage of donated organs in Georgia and in the United States. Over half of the 100,000 Americans on the national transplant waiting list will die before they get a transplant. Most of these deaths are needless. Americans bury or cremate 20,000 transplantable organs every year.

Below is a story about a little boy who desperately needs a new kidney. I share this story with you with the hope that maybe someone out there will read this and respond or, at the very least, become an organ donor by signing his or her driver’s license.

Finding A Kidney For Giovanni

Joshua’s Law Deserves Complete Funding

October 13, 2009 | Robin Frazer Clark

I am proud to represent Alan Brown in his quest for justice against the Georgia DOT for its failure to build and maintain a safe road. The Atlanta Journal and Constitution ran an article yesterday on the front page of the Metro Section about Joshua’s Law, which Alan Brown, Josh Brown’s father, created after the death of his son, Josh, in a single vehicle collision that resulted in Josh’s death. Although the State of Georgia has collected $33 Million in fees thanks to Joshua’s Law, the State of Georgia has returned only $9 Million of that money to fund Joshua’s Law, which requires driver’s education classes in Georgia high schools. How can this be, you ask? Isn’t the State of Georgia just making money on the back of Georgia taxpayers when those funds should be going to driver’s education instead of the State’s general operating account? Makes sense…but that’s not the way it works in Georgia, oddly enough. Just like the Georgia Indigent Defense Program, which has its own funding mechanism, it is up to the State to give that money to the program it was intended to fund. In the case of Joshua’s Law, trying to get back all of the $33 Million raised by Joshua’s Law into the funding of Joshua’s Law is a classic David versus Goliath. The good news is that in the Valley of Elah, David won, with only five smooth stones. Watch out, Goliath!

Thomas E. Magill: A True Friend

October 12, 2009 | Robin Frazer Clark

A week ago tonight one of my dear friends passed from this earth. Thomas E. Magill was my close friend and I am saddened at his death. Tom was a defense attorney, and so we were often adversaries with Tom defending many of the cases I filed on behalf of my clients. We even had tried a wrongful death case against each other. It is through that framework of being opponents that we became the closest of friends. The fact that we became such good friends even though we were typically on the opposite sides of cases is a testament to the professionalism in the law, that two opposing counsel do not have to take anything said or done in the heat of the battle personally, but can do their jobs on behalf of their respective clients, seek justice on behalf of their clients and still come out of that battle with the deepest respect for one another. That is one thing that makes the legal profession so noble and unlike any other profession on Earth. It is also a testament to my friend, Tom Magill. The world was a better place with Tom in it. I will miss him dearly.

MAGILL, Thomas E. THOMAS E. MAGILL Tom Magill died with grace and serenity on Monday, October 5, 2009. He was a loving and beloved husband and father, a respected attorney, a faithful servant of God, and a loyal and trustworthy friend to many. He will be remembered with joy and will be sorely missed by the many whose lives he touched so deeply. Tom was born in Washington, D.C., on July 13, 1953, and moved to Birmingham, Michigan in early childhood. He graduated from University of Detroit High, Kalamazoo College, and Tulane University School of Law, and he maintained lifelong friendships with classmates from each school. He moved to Atlanta in 1978. He then joined the firm of Carter, Ansley, Smith and McLendon and in 1996 formed his current firm, Magill and Atkinson. He was also an experienced mediator with Henning and Associates. Tom was an avid golfer and cherished his time on the course at Druid Hills Golf Club. Tom was an active and faithful servant of the Lord at the Cathedral of Christ the King, and he loved his many dear friends there. Tom is survived by his beloved wife of nearly 26 years, Dr. Carol Brock, and the three children he delighted in, Jenny, Connor, and Chris. He is also survived by his sister Ann (Richard) Nahigian of Fresno, California; brothers Douglas (Karen) Magill of Solon, Ohio, Robert F. (Carol) Magill, Jr., of Dexter, Michigan; nieces Emily (Dane) Wildey, Ann-Marie (Danny) Kraft, Katie Magill, Krista Magill, Kirstie Brock, and Jodie Cunnington; nephews, Douglas A. Magill, Jr., Brian Magill, Marc Magill, Michael Magill, Sean Magill, and Brock Cline; great-nieces Claire Wildey and Martha Lee Brock Shepherd; great-nephews, Stone Wildey, Colson Kraft and Oscar Duke Shepherd; and many cousins. Tom was preceded in death by his parents, Robert F. and Aileen (O’Connor) Magill. Tom and his family are forever grateful for the love and support shown by their family, friends and fellow survivors over the past three years, since the beginning of his journey as a multiple cancer survivor. Family will be receiving friends Thursday, October 8 from 6 to 9PM, with the rosary at 8PM, at H.M. Patterson and Son, Spring Hill Chapel. The funeral service will be held Friday, October 9 at 10AM at Cathedral of Christ the King. A private burial will be held at Honey Creek Woodlands at the Monastery of the Holy Spirit. In lieu of flowers, donations may be made to Winship Cancer Institute at Emory University, American Cancer Society , Kidney Cancer Association, Support for People with Oral and Head and Neck Cancer, the Cathedral of Christ the King, or to the charity of your choice.

Should We Have “Designated Texters?”

October 4, 2009 | Robin Frazer Clark

Pulitzer Prize winning political cartoonist Mike Luckavich had the perfect cartoon about texting the other day. It is a group of friends at a bar and they decide to be responsible on the drive home, so one of them says “OK, so who is our designated texter?” Perfect! As you know from reading my blog, studies have absolutlely proven that a sober driver who is texting while driving is really more impaired than an intoxicated driver! Now that’s some sobering news.

I have been writing about this subject for awhile, hoping that come January 2010 the Georgia General Assembly will make it illegal in Georgia to text while driving. Interestingly, now Congress is thinking about making it a Federal offense! Wow! Talking about upping the ante! The Obama administration planned to offer recommendations this past Thursday to address the growing safety risk of distracted drivers, especially the use of mobile devices to send messages from behind the wheel. “We can really eliminate texting while driving. That should be our goal,” said Transportation Secretary Ray LaHood, declining to provide specifics of the recommendation.

Well, the statistics don’t lie: the Transportation Department reported that nearly 6,000 people were killed and a half-million were injured last year in vehicle crashes connected to driver distraction, often by mobile devices and cell phones. This is insane! How many Georgians have to be injured or killed by careless drivers who are texting behind the wheel before it is made illegal? Perhaps the Georgia Legislature could create a new offense, “DWT: Driving While Texting”?

Will Georgia Legislature Outlaw Texting While Driving (TWD)?

September 25, 2009 | Robin Frazer Clark

I read yesterday that a group of United States Senators have filed a bill that would make it illegal on a Federal level to text while driving. These Senators are Senator Charles Schumer of New York, Senator Robert Menendez of New Jersey, Senator Mary Landrieu of Louisiana, and Senator Kay Hagan of North Carolina. The measure, S. 1536, called the Avoiding Life-Endangering and Reckless Texting by Drivers Act (or “ALERT Drivers” Act), would apply to drivers of any car, truck or bus, as well as most other mass transit systems, including light rail. The legislation would not apply to individuals using mobile devices in a parked vehicle, nor would it apply to passengers. Lawmakers said the legislation is necessary, citing a study by Virginia Tech researchers showing that drivers are 23 times more likely to get into an accident when texting on their phones. Other studies show that the effects of driver texting are similar to driving while intoxicated, the lawmakers said.

Good for them…although I really don’t think this is an issue that should be dealth with on a Federal level. It seems to me it is inherently a State issue and I register my hope again here that the Georgia General Assembly takes action in January 2010 to make texting while driving (TWD OR DWT) illegal. Other states have already taken this measure, including New York and California. http://lawyersusaonline.com/?article=432572 Why can’t Georgia be next? Why shouldn’t Georgia be next?

Georgia Supreme Court to Hear Caps on Medical Malpractice Damages Case

September 14, 2009 | Robin Frazer Clark

Tomorrow, the Supreme Court of Georgia, the highest appellate court in the State of Georgia, will hear oral arguments in what may prove to be one of the most significant cases to come before the Court in a hundred years. It is the case of Atlanta Oculoplastic Surgery v. Nestlehutt, which challenges the provisions of Senate Bill 3, passed in 2005 by the Georgia General Assembly, that caps noneconomic damages that a jury may award to a victim of medical malpractice at $350,000.00. This means that if your spouse, who doesn’t work outside the home, or your child who has no earnings history, is killed by medical malpractice, the absolute most you could recover for your loved one’s death is a mere $350,000.00. This is absurd on so many levels. In the Nestlehutt case, a Fulton County, Georgia jury awarded Mrs. Nestlehutt well over $350,000.00 for permament injuries she received to her body due to medical malpractice by her physicians. After a trial, the Fulton County jury found Mrs. Nestlehutt’s case to be meritorious and awarded her substantially more than the $350,000.00 cap. When judgment was about to be entered, however, the Fulton County trial court judge ruled that the cap of $350,000.00 found in SB3 was unconstitutional, for many reasons.

The Defendant appealed directly to the Supreme Court of Georgia, which will hear arguments tomorrow at 10:00 a.m. I have personally filed an Amicus Brief (a Friend of the Court Brief) on behalf of the many clients I represent in medical malpractice cases who have had the value of their claims unnecessarily reduced by the arbitrary caps on damages. Numerous briefs have been filed. There is no question in my mind that the caps on damages law violates a Georgia citizen’s absolute right to a trial by jury. Limiting what a jury says is fair and just, given all of the harms caused by a defendant’s malpractice, is tantamount to taking away a person’s right to a jury trial to decide those issues in the first place. A wronged Georgia citizen can not realize the full benefit of his or her Seventh Amendment right to a jury trial if it is limited in any way.

Also, the caps on damages limits access to justice for many. Many people who have valid medical malpractice claims but in which the only damages are noneconomic, so they are limited by the $350,000.00 cap, cannot bring any lawsuit on behalf of a loved one because they have no realistic hope of recovering enough to justify an attorney’s handling of the case. Although Georgia law allows a person to bring a case pro se, or without a lawyer, realistically, that would never work in the medical malpractice arena. There are too many special requirements for the filing and proving of a medical malpractice case. In reality, a pro se plaintiff would stand no chance. That is the beauty of a contingency fee. It allows a victim to pursue justice and when the stakes are high enough, the high cost of a medical malpractice case (many take anywhere from $75,000.00-$200,000.00 to bring and proscecute) can be justified. Otherwise, it can’t.